Case: 11-51093 Document: 00511955732 Page: 1 Date Filed: 08/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 14, 2012
No. 11-51093
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE GUSTAVO JAIMES-ARANDA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-471-1
Before BENAVIDES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Jose Gustavo Jaimes-Aranda was convicted of one charge of illegal reentry
into the United States and was sentenced to serve 46 months in prison and a
three-year term of supervised release. In this appeal, he argues that his
sentence, which is above the applicable guidelines range, is substantively
unreasonable because it is greater than necessary to advance the goals of 18
U.S.C. § 3553(a). We review this claim for plain error only because it was not
raised in the district court. See United States v. Peltier, 505 F.3d 389, 391-92
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-51093 Document: 00511955732 Page: 2 Date Filed: 08/14/2012
No. 11-51093
(5th Cir. 2007). Although Jaimes-Aranda challenges the application of this
standard, this challenge is, as he acknowledges, foreclosed. See id.
In reviewing the substantive reasonableness of a sentence, this court
considers “the totality of the circumstances, including the extent of any variance
from the Guidelines range” and “must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Gall v. United States, 552 U.S. 38, 51 (2007). “A non-Guideline sentence
unreasonably fails to reflect the statutory sentencing factors where it (1) does
not account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” United States v.
McElwee, 646 F.3d 328, 343 (5th Cir. 2011) (quoting United States v. Smith, 440
F.3d 704, 708 (5th Cir. 2006)) (internal brackets and quotation marks omitted).
Under Jaimes-Aranda’s view, his sentence is too harsh because the
guidelines calculations took his past misdeeds into account, because his prior
convictions are temporally remote, and because a lesser sentence would have
served to deter him, protect the public, and provide apt punishment for his
illegal reentry offense. This argument is unavailing because it does not show
that the district court failed to consider a factor that should have been
substantially weighted, gave undue weight to a trivial or improper factor, or
otherwise exercised unsound judgment in picking a sentence for Jaimes-Aranda.
See McElwee, 646 F.3d at 343. Indeed, this argument shows no more than
Jaimes-Aranda’s disagreement with the district court’s weighing of the § 3553(a)
factors, which does not suffice to meet the plain error standard. See Gall, 552
U.S. at 51; see also Peltier, 505 F.3d at 391-92. The judgment of the district
court is AFFIRMED.
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